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Canadian Employment Law Today
Feb 23, 2011

Employer wins appeal, saves $36,000

Court finds decision on discrimination against Muslim employee ‘flawed’
By Jeffrey R. Smith
    
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An Ontario court has overturned a $36,000 arbitration award for discrimination against an Ontario woman, ruling there was no logical or legal basis for a finding of discrimination.

Seema Saadi was hired as an intake settlement worker by Audmax, a Mississauga, Ont.-based company that administers programs to assist ethnic and religious segments of the population. Saadi, who is of Bengali descent and a Muslim, began working at Audmax on April 21, 2008.

Employee felt targeted by employer’s policies

Soon after Saadi started at Audmax, the company adopted a policy that banned French in the office to avoid mistaken impressions and implemented a policy banning the heating of certain foods in the office microwave because of food allergies and odours.

Saadi felt the microwave policy discriminated against her place of origin and ethnic background because her culture featured spicy food and the language policy targeted her because she spoke French.

Audmax CEO Maxcine Telfer also reprimanded Saadi on her clothing, saying the company dress code required her to wear professional office attire and her long, loose robes and hijab, or head covering, did not conform. Telfer was usually fine with Saadi wearing a regular hijab, but had issues with a new hijab Saadi felt was more professional looking but Telfer called a “cap.”

Saadi believed she was being targeted with a pattern of discriminatory treatment because she was a Muslim woman. This escalated in May 2008, when two other Muslim women resigned and Saadi felt she was next on the list. On May 16, she was called into a meeting about dress code violations and felt she was being watched thereafter.

Audmax admitted it was watching Saadi, but it was because she started acting suspiciously around the office after the resignations. It said she refused to comply with the microwave and dress code policies, and it was concerned with her trustworthiness and professionalism.

On May 27, 2008, Saadi was called into another disciplinary meeting about her computer use, microwave use, the dress code, her handling of files and her ethics. Telfer told her she needed to improve and she was still on probation. However, on June 3, Telfer decided she had seen enough and terminated Saadi for cause. She told Saadi she was “not an organizational fit.”

The Ontario Human Rights Tribunal found the language policy and Audmax’s monitoring of Saadi were not discriminatory because French wasn’t her first language and Audmax had reasonable concerns for keeping an eye on her. However, its microwave and dress code policies were discriminatory, said the tribunal. Though the microwave policy didn’t deliberately target Saadi, it didn’t specify what food wasn’t allowed. Telfer’s singling out of Saadi for violating the policy was a discriminatory enforcement of the policy, said the tribunal.

Though Audmax’s dress code policy required neutral business attire such as blazers, blouses and skirts, it discriminated against Saadi because it had an adverse effect on her religious beliefs regarding modest clothing and head coverings, said the tribunal. It found the clothing outlined in the dress code was not essential for the job, particularly the difference in the style of hijab.

Audmax appealed the tribunal’s award of $36,000 for discrimination and loss of wages, claiming the procedure was unfair. The employer was particularly displeased with the fact the tribunal didn’t allow written evidence from an Audmax employee who couldn’t make it to the hearing.

Tribunal’s decision short on analysis: Court

The Ontario Divisional Court allowed the appeal, finding “a number of deficiencies” in the tribunal’s decision. The court found the witness disallowed by the tribunal had helped create the microwave policy and advised on the dress code. In refusing the written evidence from this witness, the tribunal failed to advise Audmax and Telfer, who represented themselves, of their right to request a delay in the hearing until the witness was available. The court found this compromised the “overall fairness of the hearing.” The absence of this witness led to an adverse inference regarding discrimination, said the court.

The court noted the adjudicator heard that other staff members had stopped using the microwave when the policy was enforced, but Saadi continued to use it. Therefore, it said, it could be said it had less of an effect on her, let alone an adverse effect. In addition, there was no finding by the tribunal on what foods Saadi was criticized for putting in the microwave, so there was no evidence to relate the policy to her ethnicity.

The court noted the tribunal said the microwave policy was ambiguous and arbitrary, which made the finding it discriminated against Saadi because of her ethnicity a “bald conclusion that is unsupported by any factual findings.”

In addition to the microwave policy, the court also found the dress code was not discriminatory either. The policy’s requirement for business attire did not conflict with Saadi’s religious requirements to dress modestly, said the court. Though the tribunal said the dress code was arbitrarily applied, this conflicted with its earlier finding the policy was clear and well known to staff. Also, though Telfer took issue with a certain style of hijab worn by Saadi, there was no evidence Saadi could not wear a more traditional type of hijab. The court also noted the tribunal didn’t consider the Meiorin test for discrimination and bona fide occupational requirements, nor any other legal reasoning with regard to the dress code.

“The fact the employer had no problem accommodating different kinds of headdress in the past, suggests to me that what was at issue here was a question of style and taste, not religious accommodation,” said the court.

The court overturned the finding of discrimination and the $36,000 award, ordering Saadi to pay $10,000 in costs to Audmax and Telfer. It also remitted the case back to the tribunal for a new hearing. See Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315 (Ont. Div. Ct.).
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